The Great American Novel–21st Century Edition

I frequently observe that the Great American Novel is being written daily in our family courts. Too bad we lack the patience to hear it, the empathy to understand it, or the skill to craft it. This week I began my first custody trial since starting this blog in May 2009. The resolution: both just and tragic.

The case, a divorce action with custody as the primary contested issue, started in September 2005. The father wanted custody of his then-toddler daughter. My client, the wife, not only wanted custody of the child, she also wanted her husband’s visitation to be supervised and the supervision to be in a therapeutic setting. Her sole evidence to support this request was her eyewitness account of her husband doing something inappropriate, and slightly sexual, with the child. Her husband vehemently denied this allegation and noted that the timing of wife’s allegation was suspect–true–and without corroboration–also true.

Through the 56 months of my representation, which began in May 2006, father was never allowed to be alone with the child. Slowly, as professionals within the family court system–guardians ad litem, psychological evaluators, mental health professionals, judges, attorneys–observed father’s behavior, the concerns my client raised came to be believed by others, and additional, more frightening concerns, developed. Father was grandiose, hyper-religious, prone to violence as a form of discipline, and lacked any insight into how his behavior was perceived by others. He’d started this litigation with primary custody of his two middle-school age sons–not my client’s children. Gradually he lost custody of his sons, and by the time of trial his sons, now very young adults, refused any contact with him.

Father had started this litigation with the expectation of obtaining custody–after all he’d obtained custody of his two sons and, in his mind, his wife’s allegations against him were false. As trial commenced he still sought custody of his daughter, though he hadn’t seen her in 3 ½ years, nor been alone with her in six years. As trial proceeded, his hopes were slowly dashed. By the middle of the second day he was considering an offer that provided nothing but therapeutic visitation. I suggested my client offer to allow him to relinquish parental rights instead, in return for not seeking child support or attorney’s fees. Preferring a termination of any relationship with his daughter over the prospect of a relationship within a therapeutic setting, he agreed to this proposal.

The hearing in which his agreement to relinquish parental rights was approved was heartbreaking. Father was a proud man but, in part due to his religiosity, he showed his emotions more than the typical male litigant in the family court system. During the hearing he sobbed–loudly enough that one couldn’t simply ignore it but just below the level in which his crying would appear histrionic. One could see he was having an extremely difficult time emotionally and was uncomfortable being placed in a position of being so vulnerable in the midst of my client and the attorneys and guardians who–he believed–had forced him into making this awful decision.

Almost without exception, during the times when I have seen an opposing party agree to supervised visitation, no visitation, or relinquishment of parental rights, I have felt a great sense of satisfaction–often a smug satisfaction. That is because when this situation arises it is generally due to the other parent spending years placing his or her own desires ahead of any regard for the child–causing my client and the child much stress and misery during this period–and that parent is finally having to answer for his or her selfishness. This situation was different. This was a father who truly appeared to care for his children in his own way. The behaviors that everyone found so disturbing were in the nature of psychological disorders. And these disorders were ones he was too shamed or embarrassed to acknowledge, let alone obtain appropriate treatment for. Like some Old Testament patriarch laid-low by his children’s ultimate defiance and rebellion against his overly-stern authority, this man could not comprehend how all his pious behavior had led to such a tragic resolution.

Days after this trial I am still relieved for my client and her daughter, as I know she finally feels in a position to protect her child. She wept with joy and hugged me at the conclusion of the hearing to approve the father’s relinquishment of his parental rights. Such hugs are my greatest satisfaction in the practice of family law. Yet, days later, I still feel incredibly sad for this father, who, in his mind, did no wrong and has lost his daughter due to others’ baseless allegations. If only his pride had not prevented him from accepting his diagnosis and obtaining proper treatment. If only our culture had more acceptance and understanding of those with mental health problems and treated them with a measure of concern and empathy rather than scorn and disregard.

What I observed in court that day was not the comeuppance of some self-indulgent jerk. Instead it was something akin to ancient Greek drama: a man shaken to his very foundation through a single fatal flaw. The story of that moment–and the sociological, psychological, cultural and legal elements that brought us to that moment–is a story worthy of the Great American Novel. If the Great American Novel can be written about a megalomaniac sea captain chasing a giant whale, a Puritan community’s shameful treatment of an adulteress, and a juvenile delinquent and an escaped slave floating the Mississippi on a lark, surely it can be written about a man who is pushed by our system to give up the one thing he holds most dear. It shames me that I lack the skill, the imagination, and the empathy to craft it.